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NO. COA04-1310

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

KENNETH
R. BURSELL,

Employee,

Plaintiff,

v.North
Carolina Industrial Commission

I.C.
File No. 177846

GENERAL ELECTRIC
COMPANY,

Employer,

ELECTRIC INSURANCE
COMPANY,

Carrier,

Defendants.

Appeal by plaintiff from opinion and award
entered 25 May 2004 by the North Carolina Industrial Commission.Heard in the Court of Appeals 13 June 2005.

Law Offices of George W. Lennon, by George W.
Lennon, for plaintiff-appellant.

Young Moore and Henderson P.A., by Jeffrey T.
Linder, for defendant-appellants.

MARTIN, Chief Judge.

Plaintiff appeals from an opinion and award
of the North Carolina Industrial Commission concluding that plaintiff had
failed to show he suffered an injury by accident or an occupational
disease.For the reasons that follow,
we affirm in part, reverse in part, and remand this case to the Commission.

On 4 October 2001, plaintiff filed a notice
of accident to his employer, defendant General Electric Company (“General
Electric”), alerting the company he had sustained “psychiatric trauma due to
false accusation of theft by the company” on the afternoon of 26 October
1999.General Electric denied
plaintiff’s claim, and the case came for hearing before the Industrial
Commission (“the Commission”) on 14 October 2003.

The relevant facts, as found by the
Commission, are as follows: plaintiff began employment with General Electric in
1979.In October of 1999, at the time
of the alleged injury, plaintiff worked in General Electric’s aircraft section,
where his duties “mainly consisted of gathering components together to make an
engine kit to ship to Ohio.”On 26
October 1999, plaintiff assisted other employees in packing laptop computers
into boxes.Plaintiff remarked that it
was unusual to be packing laptop computers for surplus.At the end of plaintiff’s shift, the packed
boxes containing the computers were “put to the side for pickup on the next
day.”

Two days later, managers for General Electric
summoned plaintiff for a meeting.Plaintiff believed he was being sought out for receipt of an award.Instead, he was informed that some of the
laptop computers he packed were missing from the shipment.Plaintiff denied any knowledge of the
missing computers.The Commission found
that Andrea Hughes, a human resources manager for General Electric, told
plaintiff she had interviewed the other employees who had packed the computers;
that “none of their stories matched;” and that she was therefore “firing”
him.Plaintiff was then escorted to his
locker by a security guard, who took plaintiff’s employee identification badge
and escorted him to the parking lot, where he removed the parking sticker from
plaintiff’s vehicle.Plaintiff was
“extremely surprised and upset that he had been fired.”The other employees were also fired.

The following week, General Electric
requested that plaintiff return to work.When he returned, plaintiff was given a document called “decision making
leave” and was advised he had been on “crisis suspension” because he was
observed away from his work area and in the parking lot without permission on
26 October 1999.He was further cited
for failing to secure property under his control.Plaintiff appealed the crisis suspension to a peer review
committee.At the review hearing,
plaintiff was “visibly shaking.”The
peer review committee sent plaintiff a letter reminding him of rules regarding
breaks away from the workstation.General Electric found no evidence that plaintiff had stolen anything.

When plaintiff returned to work, many
employees asked him about the incident.He was harassed and called “a thief.”The Commission found that “[p]eople were constantly pointing at
plaintiff” and that he became “nervous, panicky and paranoid.”He could not sleep at night and began having
panic attacks.Plaintiff sought
assistance for his symptoms and was referred through his employment to Dr.
Koff, a clinical psychologist, who diagnosed him with “adjustment disorder with
mixed features.”Dr. Koff testified
that, but for the October 1999 incident, plaintiff most likely would not have
developed his condition.

Plaintiff also sought treatment with Dr.
Robert Weinstein, who diagnosed plaintiff with “major depression with
obsessions.”Dr. Weinstein treated
plaintiff with “supportive therapy and medicines such as antidepressants,
sleeping pills, and atypical antipsychotics.”Dr. Weinstein testified that plaintiff would need medication and support
for the rest of his life and would not be able to maintain regular attendance
in any employment.He opined that
plaintiff’s condition was caused by the circumstances surrounding plaintiff’s
firing at work.After two years of
treatment, Dr. Weinstein placed plaintiff at maximum medical improvement and
stated he was permanently and totally disabled from all types of employment.Dr. Weinstein noted that plaintiff was also
possibly suffering from post-traumatic stress disorder.

The Commission found that “[a]s a result of
being accused of stealing, fired and his treatment after he returned to work,
plaintiff developed ‘major depression with obsessions’ and possibly post-traumatic
stress disorder, which led to his incapacity to work . . . .”The Commission also found that “the sudden
meeting and abrupt firing of plaintiff due to accusations of stealing were
unexpected and not reasonably designed by plaintiff[.]”Nevertheless, the Commission found that
plaintiff had failed to show that the events surrounding his alleged injury
“were unusual workplace occurrences” so as to constitute an injury by
accident.In its conclusions of law,
the Commission compared the present case to the facts of Woody v.
Thomasville Upholstery, Inc., 355 N.C. 483, 562 S.E.2d 422 (2002) and
stated that “[p]laintiff has arguably shown unfair treatment by his employer,
which was unexpected, but the fact that the unfair treatment was unexpected
does not make it an ‘unusual’ or ‘unforeseen’ condition of his employment,
under the rationale of Woody.”According to the Commission, plaintiff had thus “not shown evidence of
either a compensable injury by accident or an occupational disease” and entered
an opinion and award denying his claim.Plaintiff appeals.Defendants
present several cross-assignments of error on appeal.

_______________________________________________________

Plaintiff argues the Commission erred in
concluding that he failed to show he sustained an injury by accident or an
occupational disease.By
cross-assignments of error, defendants argue the Commission erred in several of
its pertinent findings of fact.We hold
the Commission’s conclusions that plaintiff did not sustain an injury by accident
either directly contradict or are unsupported by certain of its findings and
that additional findings are required to resolve the question.We conclude, however, that the Commission
properly concluded that plaintiff failed to show he suffered from an
occupational disease.With regard to
defendants’ cross-assignments of error, we agree that certain of the
Commission’s findings are unsupported by the evidence, but such errors do not
offer an alternative basis for affirming the Commission’s opinion and
award.In sum, we affirm in part,
reverse in part, and remand the opinion and award to the Commission.

I. Plaintiff’s Appeal

Plaintiff argues the Commission erred by
concluding he failed to show he sustained an injury by accident or an
occupational disease.This Court
reviews an opinion and award of the Industrial Commission to determine whether
there is competent evidence in the record to support the Commission’s findings
of fact and whether these findings support the Commission’s conclusions of
law.Pitillo v. N.C. Dep’t of Envtl.
Health & Natural Res., 151 N.C. App. 641, 644, 566 S.E.2d 807, 810
(2002).Although plaintiff originally
assigned error to several of the Commission’s findings as unsupported by the
evidence, his brief on appeal contains only arguments pertaining to the
Commission’s conclusions of law.Thus,
plaintiff’s assignments of error to the Commission’s findings are deemed
abandoned.N.C. R. App. P. 28(a)
(2005).Therefore, we examine the
Commission’s findings in this case to determine whether they support the
Commission’s conclusions of law that plaintiff failed to sustain a compensable
mental injury or occupational disease in the course of his employment.We first consider whether plaintiff has
shown that he suffered a compensable injury by accident arising out of and in
the course of his employment.

A.
Injury by Accident

Under the Workers’ Compensation Act (“the
Act”), a mental or psychological illness may be a compensable injury if it has
occurred as a result of an “accident” arising out of and in the course of the
claimant’s employment.See Jordan v.
Central Piedmont Community College, 124 N.C. App. 112, 118-19, 476 S.E.2d
410, 414 (1996) (stating that, “[w]e cannot conclude that mental injuries by
accident are not covered under the Act when we have clearly awarded workers’
compensation for mental conditions as occupational diseases”), disc. review
denied, 345 N.C. 753, 485 S.E.2d 53 (1997).The claimant bears the burden of proving the existence of an
accident.Pitillo, 151 N.C. App.
at 645, 566 S.E.2d at 811.An injury
does not arise by accident “[i]f an employee is injured while carrying on his
usual tasks in the usual way[.]”Gunter
v. Dayco Corp., 317 N.C. 670, 673, 346 S.E.2d 395, 397 (1986).“An accidental cause will be inferred,
however, when an interruption of the work routine and the introduction thereby
of unusual conditions likely to result in unexpected consequences occurs.”Id.To be an accident, the incident must have been for the employee an
“unlooked for and untoward event.”Cody
v. Snider Lumber Co., 328 N.C. 67, 70, 399 S.E.2d 104, 106 (1991); see
also Pitillo, 151 N.C. App. at 645, 566 S.E.2d at 811 (stating that an
accident involves “‘an unlooked for and untoward event which is not expected or
designed by the person who suffers the injury’” involving “‘the interruption of
the routine of work and the introduction thereby of unusual conditions likely
to result in unexpected consequences.’”) (quoting Calderwood v.
Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112, 115, 519 S.E.2d 61,
63 (1999), disc. review denied, 351 N.C. 351, 543 S.E.2d 124 (2000)).

In Pitillo, this Court held that the
Commission’s findings of fact supported its conclusion that the plaintiff had
failed to show a compensable mental injury.The Pitillo plaintiff alleged she suffered a nervous breakdown
and stress-induced anxiety after meeting with her supervisor regarding a
performance review.The Commission
found the plaintiff had initiated the meeting, the meeting was not out of the ordinary,
and everyone involved was treated courteously.Specifically, the Commission found that “the discussion was a routine,
problem-solving meeting;” that “[n]othing in this meeting was different from
other meetings to discuss performance evaluations;” and that “[t]he meeting to
discuss plaintiff’s job performance evaluation was requested by plaintiff and
was an ordinary incident of employment.”Pitillo, 151 N.C. App. at 646, 566 S.E.2d at 811-12.Based on these findings, the Commission
concluded the meeting could not be considered an “unlooked for or untoward
event” or an interruption of the work routine so as to be considered an
“accident” under the Act.

Similarly, in Knight v. Abbott
Laboratories, 160 N.C. App. 542, 586 S.E.2d 544 (2003), the Commission
denied a mental injury claim by a plaintiff who allegedly developed
post-traumatic stress disorder and recurrent major depression after an argument
with her supervisor.The Commission
found that the plaintiff had initiated the meeting with her supervisor and that
“the confrontation . . . did not constitute an unexpected, unusual[,] or
untoward occurrence; nor did it constitute an interruption of the work routine
and the introduction thereby of unusual conditions likely to result in
unexpected consequences.”Id. at
545, 586 S.E.2d at 546.This Court
affirmed the opinion and award of the Commission, stating that “[t]he evidence
shows that plaintiff deliberately initiated the meeting with [her supervisor]
to voice her disagreement with his decision to award the vacation day to
another employee.It is not unexpected
that this would lead to a heated discussion involving raised voices on both the
part of the supervisor and employee.”Id.
at 546, 586 S.E.2d at 547.The Knight
Court compared its case to Pitillo:

the evidence at most reveals the events
themselves did not result in injury, but rather that it was [the] plaintiff’s
emotional response to the meeting, which she had initiated, that resulted in
her psychological harm.See Pitillo,
151 N.C. App. at 645-46, 566 S.E.2d at 811.Thus, we conclude the Commission’s findings of fact support its
conclusion that [the] plaintiff did not suffer a compensable injury by
accident.

Id. at 547, 586 S.E.2d at 547.

In the present case, the Commission found
that the “sudden meeting and abrupt firing of plaintiff due to accusations of
stealing were unexpected and not reasonably designed by plaintiff[.]”The Commission also found that “[s]ince
plaintiff did not steal the computers, he had no expectation of being accused
of stealing and was extremely surprised, upset and humiliated by his
firing.”Notwithstanding these
findings, the Commission also found that plaintiff had not shown that such
“sudden” meetings and “abrupt” firings were “unusual workplace occurrences” and
thus concluded that “the meeting with Ms. Hughes and [plaintiff’s] subsequent
firing [did not] constitute[] a compensable injury by accident.”Plaintiff contends the Commission’s
conclusion in this regard is unsupported by its findings.We agree.

Unlike Pitillo and Knight, in
this case the Commission made no finding that the meeting with Hughes and the
events following that meeting were “routine” or “ordinary.”Indeed, the Commission specifically found
that the meeting was “sudden,” “unexpected,” and that plaintiff did not
initiate the meeting.Further, the
Commission found plaintiff’s firing was “abrupt.”Although the Commission did find that plaintiff had “not shown
that [the sudden meeting and abrupt firing] were unusual workplace
occurrences,” this single, conclusory finding is contradicted by the
Commission’s multiple other findings regarding the unexpected nature of the
events leading to plaintiff’s injury.The Commission’s conclusion that plaintiff failed to show he sustained
an injury by accident is therefore unsupported by its findings and must be
reversed.

Defendants argue that plaintiff’s firing was
a “legitimate personnel action” which did not interrupt the normal work routine
and thus could not give rise to any injury “by accident.”Compare James R. Martin, Comment, A
Proposal to Reform the North Carolina Workers’ Compensation Act to Address
Mental-Mental Claims, 32 Wake Forest L. Rev. 193, 207 (1997) (arguing that,
“[i]f an employer determines that an employee should be transferred, demoted,
or dismissed, and does so without violating federal statutes or public policy,
then that employer should not be liable for any mental injury resulting from
the personnel action.Otherwise,
employers would be limited in making their personnel decisions according to
which employees they feel are likely to suffer mental injury.Further, insulating employers from liability
for legitimate personnel decisions would prevent fired employees from claiming
a mental injury due to the suddenness of termination, simply to gain revenge on
the employer”).However, the Commission
made no findings regarding whether the disciplinary action was a “legitimate
personnel action” or part of plaintiff’s “normal work routine.”This Court may not substitute its own
findings for those made by the Commission.We do not agree with defendants that a “legitimate personnel action” can
never involve the interruption of the work routine.Whether or not a particular personnel action
is part of an “established sequence of operations” is a factual matter which
must be decided on a case-by-case basis.See Gunter,317 N.C. at 675, 346 S.E.2d at 398.“The Workers’ Compensation Act should be
liberally construed to effectuate its purpose to provide compensation for
injured employees and its benefits should not be denied by a narrow, technical
and strict construction”. Id.at 676-77, 346 S.E.2d at 399.

Because the Commission failed to make
sufficient findings regarding whether the personnel action leading to
plaintiff’s injury was the “normal work routine” or part of an “established
sequence of operations,” we cannot determine whether plaintiff sustained an
injury by accident under the law.We
therefore reverse that portion of the opinion and award of the Commission
concluding that plaintiff failed to show he suffered an injury by accident and
remand this case to the Commission for additional findings.

B.Occupational Disease

Plaintiff also argues the Commission erred in
concluding he failed to show he is suffering from an occupational disease.We reject plaintiff’s argument on several
grounds.

First, the Commission specifically found that
“plaintiff is not claiming that he suffers from an occupational disease.”Plaintiff does not take issue with this
finding and is therefore bound by it.Second, plaintiff failed to show that his depression was due to “causes
and conditions which are characteristic of and peculiar to a particular trade,
occupation or employment.”N.C. Gen.
Stat. §97-53(13) (2003) (defining occupational disease); Woody v.
Thomasville Upholstery, Inc., 355 N.C. 483, 562 S.E.2d 422 (2002); Clark
v. City of Asheville, 161 N.C. App. 717, 721, 589 S.E.2d 384, 387 (2003)
(noting that, in order to qualify as an occupational disease, “a plaintiff has
to show that his psychological condition, or the aggravation thereof, was (1)
‘due to causes and conditions which are characteristic of and peculiar to a
particular trade, occupation or employment’ and that it is not (2) an ‘ordinary
disease[] of life to which the general public is equally exposed’”) (quoting
N.C. Gen. Stat. §97-53(13)).Plaintiff
presented no evidence, and the Commission made no findings to support a
conclusion, that plaintiff’s depression was due to causes and conditions characteristic
of and peculiar to his employment in the aircraft section of General
Electric.We overrule this assignment
of error.

II. Defendants’ Cross-Assignments of Error

Defendants cross-assign error to several of
the Commission’s findings as being unsupported by the evidence.Specifically, defendants assign error to the
Commission’s findings indicating that plaintiff was accused of theft and that
he was “fired.”They also argue that
the Commission’s finding as to the action taken by defendant General Electric’s
peer review committee was incomplete and misleading as it left the impression
that plaintiff was exonerated from wrongdoing.We review the record to determine whether the findings about which
defendants complain are supported by any competent evidence.Pitillo, 151 N.C. App. at 644, 566
S.E.2d at 810.

Plaintiff testified that, on 28 October 1999,
he was summoned to a conference room where he met with Andrea Hughes, the human
resources manager, Todd Best, an ombudsman, and a security guard.Hughes informed plaintiff of the missing
computers.Plaintiff “assured [Hughes]
right then that [he] didn’t have anything to do with the laptop missing.”Hughes informed plaintiff that “none of the
stories matched up, and that she was going to have to take drastic steps, and
she was suspending [plaintiff] from work because of the [theft] of the laptop
computers.”Plaintiff told Hughes that
“what she was doing was wrong” and that “she was questioning [his]
integrity.”As the security guard
escorted plaintiff from the building, plaintiff felt “there were employees
looking at me like I was a convict.”When plaintiff returned to work, he “was harassed by people.”As plaintiff explained:

People would call back there in the area
where the phone was at and if I spoke in it, they would say, “Thief.”Several times I’ve been called at home,
harassed on the telephone.People
pointing at me.People that had never
been back there in - in shipping - that I had never seen - you could see them
underneath the tables pointing to me . . . .

Plaintiff became “very paranoid and very
nervous and very panicky.”He appealed
his suspension to a peer review committee, which issued plaintiff a written
reminder regarding breaks away from the work station.The peer review committee found no evidence that plaintiff had stolen
anything.

From the above-referenced testimony, we
conclude there was competent evidence to support the Commission’s findings that
plaintiff was “accused of theft.”Although General Electric may never have directly and explicitly
informed plaintiff that it believed he had stolen the missing property, such an
accusation was clearly implied in every way.Hughes informed plaintiff he was beingsuspended “because of the theft of the laptop computers.”Certainly, it is obvious from plaintiff’s
testimony that he believed he was being accused of theft, and that other
employees believed the same.Persons
harassed plaintiff at work and called him “Thief.”The peer review committee specifically found there was no
evidence that plaintiff had stolen anything. The Commission’s findings that plaintiff was “accused of theft”
are therefore supported by the evidence.

Likewise, we find support in the evidence for
the Commission’s finding that “Plaintiff received a letter from the peer review
committee reminding him of rules regarding breaks away from the
workstation.Defendant-employer did not
find any evidence that plaintiff had stolen anything.”Contrary to defendants’ argument, we do not
agree that the finding was either incomplete or misleading.

However, we agree with defendants that there
is no evidence in the record to support the Commission’s numerous findings that
plaintiff was “fired” from his position at General Electric.Rather, plaintiff testified he was placed on
“crisis suspension.”Although plaintiff
testified he “didn’t know what a crisis suspension was[,]” plaintiff never
testified that anyone from General Electric informed him he was fired, or that
he believed himself to be terminated.As such, the Commission erred in finding that plaintiff was “fired,” and
these findings must be set aside. Our action in doing so, however, does not
afford defendants an alternative basis for sustaining the Commission’s opinion
and award, see N.C. R. App. P. 10(d) (2005), because whether plaintiff
was fired or disciplined in some other way, under the circumstances in this
case, is not determinative of the issue of whether he suffered a injury by
accident.As we have noted above, the
issue to be determined is whether the actions taken by defendant General
Electric’s employees with respect to plaintiff on 26 October 1999 were
“unexpected, unusual, or untoward occurrences constituting an interruption of
the work routine and the introduction thereby of unusual conditions likely to
result in unexpected consequences.”Knight,160 N.C. App. at 545, 586 S.E.2d at 546.

III. Conclusion

In conclusion, we hold the Commission erred
in concluding plaintiff failed to sustain an injury by accident where it found
that the events giving rise to plaintiff’s injury were sudden, abrupt, and
unexpected by plaintiff, and made no findings regarding whether the events
giving rise to plaintiff’s injury were ordinary, routine, or in the course of
normal business operations.The
Commission also erred in finding that plaintiff was fired.We therefore reverse that portion of the
opinion and award of the Commission finding that plaintiff was fired and
concluding that he failed to show he sustained an injury by accident.Upon remand, the Commission should reconsider
whether plaintiff has suffered an injury by accident by determining and making
findings regarding whether the events giving rise to plaintiff’s injury were a
part of the normal work routine or an established sequence of operations.We affirm that portion of the opinion and
award concluding that plaintiff failed to show he sustained an occupational
disease.